In praise of religious arbitration

James Stewart and Rebecca Carlyon, family law partners, Manches
11 February 2013

A recent family case gives significance to religious courts while preserving superiority of civil law courts

As the case of AI v MT has illustrated, the relationship between civil and religious courts in England is a sensitive and sometimes controversial one, particularly in family matters. In this case Mr Justice Baker considered and agreed to a request by both parties to refer all issues to arbitration by a Jewish religious court, the New York Beth Din, at a time when there was no precedent for referring a family case to any form of arbitration.

Baker made clear that while the Beth Din’s decision would not fetter the jurisdiction of the court, an arbitration award would carry considerable weight in relation to the determination of all issues.

Any arbitrated decision in relation to children would be given particular weight if the court was satisfied that the religious tribunal had considered the best interests of the children, as Baker found the Beth Din to have done. Indeed, he went to some pains to consider the principles that would be applied by the rabbinical authorities and approved the decision, “having been reassured as to the principles which would be applied…which so far as the children were concerned were akin to the paramountcy principle on which English children’s law is based”.

I disagree with this. New York has dealt with these issues for decades and has not, as far as I know, referred a custody case to religious arbitration. It routinely order forensic custody evaluations but any witness, religious expert or otherwise, must come into court to be examined and cross=examined in open court.

1. I thought otherwise

According to New York state law, if both parties in a civil matter agree to have it held before a religious court, then it shall be. Divorce between Orthodox Jews is regularly done in a Beth Din, and religious Muslims can get civil disputes settled under Sharia if both sides consent to it. I know that similar situations exist in several US states and Canadian provinces -- I believe that the same is true in Australia.

2. The Family and Supreme Courts of New York have exclusive concurrent jurisdiction over custody.

Parties in civil disputes almost always have a right to go to an arbitrator of their choice, religious and otherwise. Custody is different. Of course, nothing prevents the parties from seeking mediaation through a religious or secular entity and then presenting their mediated agreement to the court for approval as a court order. But arbitration is a much different animal than mediation.

BTW, New York is the only state I know where each party must recite in the divorce papers that he or she will do all in his or her power to remove any barriers to a religious remarriage. This is because of a history of husbands threatening to oppose a Get as leverage in the civil litigation.